Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April.  This year, employers must also monitor for potential regulatory changes to the filing process.  On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.”  The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings.  While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.

The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.

US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association.  The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:


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In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category.  Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly

The Texas Attorney General, joined by six other states, filed suit against the federal government yesterday to terminate the Deferred Action for Childhood Arrivals (DACA) program on the basis that DACA derives from an executive overreach by President Obama in 2012. The suit was filed in the Fifth Circuit in Brownsville, Texas, where a November 2015 decision overruled President Obama’s plans to protect more than 4 million individuals from deportation.

The lawsuit further complicates the fate of DACA recipients, also known as Dreamers, as other district court rulings remain active. Most recently, a  Washington, DC district judge ordered that DACA renewal applications should continue, and that new applicants may be eligible to apply if the federal government fails to justify within 90 days why DACA should cease altogether.


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